Days from Start of New Title IX Rule, Courts Offer Divided Map of Red and Blue

Updated

A federal district court judge in Missouri has blocked implementation of the Biden administration’s new Title IX rule in six additional states — Arkansas, Iowa, Nebraska, North Dakota and South Dakota.

The latest injunction , ordered late Wednesday, brings to 21 the total number of states where the U.S. Department of Education can’t enforce the rule on Aug. 1.

Judge Rodney W. Sippel, a Clinton nominee, said the plaintiffs have a “fair chance” of demonstrating that the department “exceeded its statutory authority” by using the Supreme Court’s decision in Bostock v. Clayton County to expand Title IX protections to LGBTQ students.

Ravina Nath, a recent graduate of Gunn High School in Palo Alto, California, originally included Rice University in Houston on her short list of colleges to attend this fall. With an interest in neuroscience, she was drawn to its top-ranked biomedical engineering program.

That was before Texas became one of 26 states to sue the U.S. Department of Education  over its new Title IX rule . The regulation extends protections against discrimination and harassment to LGBTQ students and requires prompt investigations into students’ complaints.

Instead, she’ll attend Barnard College in New York City.

“I need to be in a place where I would feel like my school supported me,” said Nath, who became a Title IX advocate in high school. At Rice, some students objected to how officials handled complaints of sexual misconduct. And she ruled out the University of Georgia, a “potential safety school,” because it declined in 2021 to make data on such investigations public. Several of her friends made similar calculations when narrowing down school choices.

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“My friends who are survivors and who are LGBTQ+ students applied to schools on the West Coast or the Northeast,” she said. “I don’t think any of my friends applied to school in Florida .”

With the new rule set to go into effect Aug. 1 — just seven days away — a flurry of lawsuits has once again turned the map of the United States into a familiar patchwork of red and blue.

District courts have blocked the regulation in 15 Republican-led states. In the most recent development, the Biden administration on Monday asked the U.S. Supreme Court to allow all but two provisions related to gender identity issues to go into effect in 10 of those states after two appellate courts denied earlier requests.

Complicating the legal math further, in an earlier action, a federal judge in Kansas blocked the rule just at schools serving children of current and future members of the conservative Moms for Liberty and students involved in Female Athletes United , another advocacy organization opposed to trans girls competing on teams consistent with their gender identity. Moms for Liberty sees the ruling as an expansion opportunity: On Tuesday, the group launched a membership drive tied to Title IX.

With the legal landscape changing daily, some experts think the Education Department should take a step back and delay the rule.

“For schools, universities and students, it’ll calm things down,” said Sandra Hodgin, who runs a Title IX consulting firm in Los Angeles. “What are we talking about, 75% of the country not implementing Title IX and only 25% of the country implementing it?”

A spokesperson said the department has no plans to skirt the Aug. 1 deadline. On Tuesday, it sent schools a list of “ pointers for implementation ” and a video on how to draft policies to comply.

For now, the Supreme Court is considering whether to lift the temporary pause on the rule in the affected states.

The far larger question is what the justices might decide if and when they consider the substance of the rule itself. In addition to expanding protections to LGBTQ students, the new rule largely replaced one issued under former Education Secretary Betsy DeVos. That regulation narrowed the definition of sexual misconduct and required live hearings so male students could face their accusers.

W. Scott Lewis, managing partner with TNG Consulting, which trains districts across the country on Title IX, has advised red states covered by an injunction, like Wyoming and Idaho, that they’re currently bound by the 2020 regulation.

But that could change quickly.

“It’s a race to the Supreme Court right now,” he said.

‘Bigger than sports’

Some families with LGBTQ students aren’t waiting for the legal drama to run its course. They’ve already left red states to escape laws that bar trans students from using bathrooms or playing on sports teams consistent with their gender identity. Several have moved to the Denver metro area, where Lewis lives, to attend schools in a state that is not challenging the rule.

“We have more than a handful of students at my kid’s high school who moved here from Wyoming, from Kansas, from Iowa,” he said.

Most of the controversy surrounding Title IX focuses on trans students’ participation in sports, a part of the rule that the U.S. Department of Education has delayed addressing until after the election. But in Lewis’s estimation, that issue is “bigger than sports.”

“If I’m in a state that won’t let me compete, I’m probably not in a state that’s very friendly to LGBTQ students on the whole,” he said. “I’m far more likely to just move on.”

In blue states set to implement the new rule, many conservative parents say their children’s rights are also at stake.

They’re concerned students would be disciplined for not using LGBTQ kids’ preferred pronouns, forced to censor their speech or share bathrooms and locker rooms with trans students.

Hillary Hickland, a mother of four in central Texas, moved her children out of the Belton Independent School District partly because she felt there was too much emphasis on students’ gender identity. Her sixth grade daughter told her that teachers encouraged a friend to identify as a boy and use a boy’s name without the parents’ knowledge.

“Don’t do it behind the backs of the parents. That’s a huge violation of trust,” she said. As a Republican running for the Texas House, she’s concerned about sexual orientation and gender identity becoming part of Title IX. “We have the federal government dictating what goes on in our local public schools. It really undermines the neighborhood school and that culture that we’re trying to preserve.”

‘Nine months behind’

Lewis predicts the Supreme Court will eventually follow its precedent in Bostock v. Clayton County , which said that at least in the workplace, LGBTQ employees are protected from discrimination. The Biden administration’s new rule rests on that decision.

Justice Neil Gorsuch , who wrote that majority opinion, “can’t undo Bostock . He said sex means LGBTQ rights,” Lewis said. In red states where the rule is on hold, districts “better be ready to implement very quickly because [they’re] going to be nine months behind everyone else.”

If the court also decides to address sports participation — an expected part of the regulation the administration has yet to issue — Lewis said it’s possible the justices would rule similar to the way they handled abortion rights , leaving it to the states to determine when trans students can compete on teams consistent with their gender identity.

He called that a “nightmare scenario” because it would “create a world where athletes could compete in some states but not others.” And at the college, NCAA level, “there will be all sorts of questions that can’t be limited to state borders,” said Joshua Dunn, executive director of the Institute of American Civics at University of Tennessee, Knoxville. “They’ll have to address that, too.”

Dunn also suggested the conservative court might not follow Bostock and could treat LGBTQ issues differently at school than they do in the workplace. He noted cases, like Bethel v. Fraser , where the court put limits on students’ First Amendment rights in schools “that it would never allow outside of K-12 education.”

Overturning ‘Chevron’

Another recent Supreme Court decision, unrelated to education, adds an additional layer of uncertainty to the debate over Title IX’s future — one that could affect both sides.

In Loper Bright Enterprises v. Raimondo , the court overturned what was known as “Chevron deference,” which gave federal agencies broad authority to interpret ambiguous laws through guidance and regulations. The decision gives federal courts more power to explain the law when it’s unclear, and experts say, should end “ agency flip-flopping .”

The Obama administration first issued a dear colleague letter in 2011 stating schools’ obligations to protect students from sexual violence and harassment, which the Trump administration largely reversed in 2020, followed by yet another 180 in the spring by Biden’s education department.

Republicans have already warned Education Secretary Miguel Cardona that they will review the department’s rules since President Joe Biden took office,  including Title IX. GOP leaders call the rule “overreach.”

The conservative Heritage Foundation’s Project 2025 , largely assumed to be a legislative blueprint for a second Trump term,would remove the terms sexual orientation and gender identity from “every federal rule, agency regulation, contract, grant, regulation and piece of legislation that exists.”

But if Trump tries to reinstate the DeVos rule, Democrats could use Loper Bright to bring the same challenge, Lewis said.

“If you … say the department does not have the authority, then the 2020 regulations don’t count either,” he said. “It was exactly the same procedure.”